Fogel Refrigerator Co.

National Labor Relations Board - Board Decisions

Apr 23, 1945

61 N.L.R.B. 692 (N.L.R.B. 1945)

In the Matter of WILLIAM FOGEL, ISRAEL FOGEL, AND DAVID FOGEL,
INDIVIDUALLY AND AS CO-PARTNERS, D/Bj A FOGEL REFRIGERATOR CiO1%7-
PANY and FURNITURE, CASKET AND GENERAL WOODWORKERS, LOCAL
37, AFFILIATED WITH UNITED FURNITURE WORKERS OF AMERICA,
C.I.O.
Case No. 41-R-16418-Decided April 23, 1945
Messrs. Herman Toll, W . H. Morrison , and William Fogel, of Phila-
delphia, Pa., for the Company.
Mr. George Bucher, of Philadelphia , Pa., for, the Union.
Hr. Stanley B. Korengold , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon a petition duly filed by Furniture, Casket and General Wood-
workers, Local 37, affiliated with the United Furniture Workers of
America, C. I. 0.,' herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of William Fogel, Israel Fogel, and David Fogel, individually
and as co-partners, doing business as Fogel Refrigerator Company,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Eugene M.
Purver, Trial Examiner. Said hearing was held at Philadelphia,
Pennsylvania, on March 6, 1945. The Company and the Union ap-
peared and participated. All parties were afforded full opportunity
to be heard, to examine and cross examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with-the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF TIIE COMPANY
William Fogel, Israel Fogel, and David Fogel, individually and as
co-partners, doing business as Fogel Refrigerator Company, a part-
' By motion made and granted at the hearing , petitioner Union amended its name to read
as herein set forth.
61 N. L. R. B., No. 109.
092
FOGEL REFRIGERATOR COMPANY 693
nership under the laws of the Commonwealth of Pennsylvania with
its main office and-plant located in Philadelphia, Pennsylvania, is en-
gaged in the manufacture, sale, and distribution of commercial ref rig-
erators. During the year 1944 the Company purchased raw materials
consisting of sheet metal, rubber, glass, and insulating material
amounting to over $100,000, of which approximately 75 percent was
shipped into Pennsylvania from points outside the Commonwealth.
The total sales for that period amounted to over $200,000, of which
approximately 50 percent represented sales involving shipment of
products to points outside the Commonwealth of Pennsylvania.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Furniture, Casket and General Woodworkers, Local 37, affiliated
with United Furniture Workers of America, C.I.O., is a labor organi-
zation admitting to membership employees of the Company. .
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain of the Company's em-
ployees until the Union has been certified by the Board in an appropri-
ate unit.
A statement of the Field Examiner, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of employees of the Connpany, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks to represent a unit consisting of all production and
maintenance employees, including leaders and shipping and receiving
employees, but excluding engineers, firemen, watchmen, clerical em-
ployees, foremen, and other supervisors with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees or effectively recommend such action. The Company
contends that maintenance employees, leaders, and shipping and re-
ceiving employees should also be excluded from the bargaining unit.
2 The Field Examiner reported that on January 29, 1945 , the date the petition was filed,
of 40 employees in the unit contended for, the Union submitted 21 application -for-member-
ship cards On February 14, 1945, this unit comprised only 14 employees . 11 of whom hid
signed the union application cards
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the close relationship between the work of the production
employees and that of the maintenance employees, and their necessary
integration, and since no cogent reason appears for their separation,
we shall follow our usual policy of including the maintenance em-
ployees with the production employees in one bargaining unit.3
The shipping and receiving employees inspect the finished goods,
remove them, prepare them for shipment, and finally load them for
delivery. Their work is an integral part of the production process,
and we shall theref ore include them in the unit.4
The record discloses that the leaders, whom the Company would
exclude, work along with the men and are often paid the same wage
rate. Furthermore, at the time of the hearing there were but 14 em-
ployees in the unit, over whom a superintendent and 2 foremen exer-
cised supervisory powers. Some leaders were the sole employees in
their department, having no one under their direction. Leaders have
no authority to hire, discharge, or discipline employees. While they
occasionally recommend a transfer of employees whom they direct, we
are of the opinion that they do not possess supervisory authority
within the Board's definition thereof; we shall therefore include them
in the unit.
We find that all production and maintenance employees including
leaders and shipping and receiving employees, but excluding engi-
neers, firemen, watchmen, clerical employees, foremen, and those super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
V. THE DETERMINATION OF REPRESENTATIVES
The record discloses that the Company employs "refrigerator me-
chanic trainees" who undergo a short training period in all depart-
ments of the factory prior to becoming full-fledged refrigerator
mechanics. The Company contends these trainees should be ineligible
to vote in the election, whereas the Union urges their eligibility. Since
they have a reasonable expectancy of permanent employment with the
Company, and therefore have a substantial interest in the working
conditions in the Company's plant, we find that the refrigerator me-
chanic trainees are eligible to vote in the election hereinafter directed.,
8 Matter of Faries Manufacturing Company, 38 N. L. R. B 399; Matter of Southern
Prison, 53 N. L. R. B. 604. The Company has but one maintenance employee. He does
the carpentry , plumbing , and electrical repair work; he keeps the production machines
and motors in proper working order.
'Matter of Bee Machine , 60 N L It. B 77
5 Matter of United States Gypsum Company, 55 N. L It. B. 586; Matter of Douglas Air-
craft Company, Inc, 60 N. L R B 876.
FOGEL REFRIGERATOR COMPANY 695
The Union requests that the Board depart from its normal practice
and declare eligible to vote those employees on the pay roll at the time
the petition was filed, January 29, 1945. It urges that employees laid
off since that date because of a slack in work should be considered as
part of the regular pay roll. These employees are not retained on any
preferential hiring list by the Company; at the time of their lay-off
they were given releases to enable them to secure other employment ;
and, moreover, there is no probability of their reemployment by the
Company in the near future. Under the regulations of the War Man-
power Commission these employees will be required to procure certifi-
cates of availability before they can be reemployed by the Company.
Accordingly, it is clear that they are no longer employees of the Com-
pany, and we find, therefore, that they are ineligible to vote s
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with William Fogel,
Israel Fogel, and David Fogel, individually and as co-partners, doing
business as Fogel Refrigerator Company, Philadelphia, Pennsylvania,
an election by secret ballot shall be conducted as early as possible, but
not later than thirty (30) days from the date of this Direction, under
the direction and supervision of the Regional Director for the Fourth
Region, acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Sections 10 and 11, of said Rules
and Regulations, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including refrig-
erator mechanic trainees and employees who did riot work during said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
9 Matter of E. I. Du Pont de Nemours and Company, 52 N. L . R. B. 1335 ; Matter of Mieh.le
Printing Press and Manufacturing Company, 58 N. L. R B , 1134, Matter of Seattle
Drum Company , 60 N. L . R. B. 440.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those employees who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election, to
determine whether or not they desire to be represented by Furniture,
Casket and General Woodworkers, Local 37, affiliated with United
Furniture Workers of America, C . I. 0., for the purposes of collective
bargaining.